by C.A.Chandraprema Courtesy The Island

*  Why Parliamentary Elections Act of 1981 should be amended
*  Merits of our 1946 Parliamentary Elections Order in Council

March 14, 2020, 6:55 pm

Parliament has now been dissolved and an election is now on even though the election campaign has not begun in earnest due to the Covid-19 threat. In China, where the Covid-19 epidemic originated, the first fatality from the virus was reported in mid January and the epidemic had run its course before mid-March. Medical teams from China are now being flown into Italy to assist in controlling the spread of the virus and China is no longer considered a danger zone. Even the world crude oil prices saw a sharp increase because of the Chinese recovery. Given the short duration of the epidemic it may be the case that Sri Lanka will be able to bring the spread of the virus under control in time to be able to hold the parliamentary election as scheduled on April 25.

Be that as it may, at this present moment we are within the period that nominations are accepted by the Elections Commission. Nominations close on the Thursday (Mar. 19). Three days before parliament was dissolved, a media report that caught this writer’s attention stated that Election Commission Chairman Mahinda Deshapriya had said that displaying posters and cut-outs during the election campaign has been banned and legal action will be taken against those who do so. According to that news report which was published in a daily English language newspaper (not The Island), the Chairman of the Elections Commission had told the media that the candidates should organize door to door visits to canvass for votes. The present Parliamentary election is being held under the Parliamentary Elections Act of 1981. Under this law, the following activities are prohibited between the time the nominations period ends and the poll is held.

Declaring elections & prohibiting the campaign

Section 69 (Restriction on processions) From the time nominations open and until one week lapses after the election result is declared, nobody can conduct or take part in processions to promote any candidate. During this period, non-political processions of a religious or social nature may take place, but even at such processions, it is illegal to promote a candidate. Those violating this law are liable to not just a fine but a prison sentence of up to one month as well.

Section 74 (Display of handbills & posters) From the commencement of the nomination period until the end of the poll, no handbill, placard, poster, drawing, notice, photograph, symbol, sign, flag or banner of a candidate can be displayed on or across any public road. The same cannot be displayed in any premises whether public or private either. However candidates may display banners and posters on the vehicle used by the candidate. Posters and banners may be displayed in public or private premises only on the day that an election meeting is to be held in those premises. In addition to the fine and one month prison term for violating this law, a specific provision in Section 74(3) says that the fine and prison term or both can be imposed on anyone even attempting to commit the offense described in this section. The police are also authorized to use such force as may be reasonably necessary to prevent the violation of this ban and they are expressly given the authority to seize any handbill, placard, poster, notice, drawing, symbol, photograph of a candidate, sign, flag or banner used in such contravention.

Section 75 (Restrictions on house to house canvassing) From the day the nominations close until the day after the poll, candidates and the members of their immediate families are prohibited from going house to house canvassing for votes. They are also forbidden from distributing handbills and election propaganda material from house to house. What sense can anyone make of these laws which seek to ban candidates from engaging in activities that are most visibly associated with elections? An election is all about candidates marketing themselves by putting up posters and cut outs of themselves, distributing hand bills, going from house to house canvassing for votes and holding processions in support of his candidacy. By doing what he is supposed to do, a candidate becomes a violator of election laws. Very often, a candidate does not know whether he is going to stand for election until the day nominations close. In most political parties (or the two main parties at least) finalizing the nominations list is a difficult process which occurs only in the final 48 hours before nominations close. So it is really after nominations close that the election campaign begins in earnest. This is also exactly the period in which the law seeks to place restrictions on candidates from promoting themselves.

Mercifully, the Sri Lankan elections law does not seek to stifle public meetings, that other great sign of an election. Section 70 of the Parliamentary Elections Act of 1981 stipulates that public meetings have to stop only 48 hours before the date of the poll. But even with regard to these meetings, posters announcing such events can be displayed only at the venue that such meetings are to be held, and that too only on the day of the meeting itself. How can anyone expect to pull crowds for an election meeting that is not announced beforehand? If someone puts up posters announcing the meeting a few days early, that too will be an election law violation. If we go by the letter of the law, the only way to advertise such public meetings within the law would be to fit loudspeakers onto a vehicle and send it around to announce the meeting in the surrounding villages! That practice has not been expressly banned. But these vehicles that go around to announce a public meeting should not display any posters of the candidate they are promoting lest it violates the election law!

Elections Commission in violation of the law

Readers will note that according to the media report mentioned earlier, the Chairman of the Elections Commission has said that posters and cutouts will be banned but he had encouraged house to house canvassing. According to the Parliamentary Elections Act of 1981, even house to house canvassing is prohibited. It appears that Sections 69, 74 and 75 of the Parliamentary Elections Act of 1981 were meant to be flouted. The fifty-somethings of today would remember the first parliamentary election held under the Parliamentary Elections Act of 1981 which was held in April 1989. There were more posters and cutouts at that election than any previous election that we could remember. There would have been more meetings, more processions and more house to house canvassing as well at that election than at any previous election if not for the JVP terror which was in full swing at that time.

At the second parliamentary election under the Parliamentary Elections Act of 1981 which was held in 1994, all political parties were in competition with one another to flout Sections 69, 74 and 75 of the Parliamentary Elections Act of 1981. Everything that the political parties could not do in 1989 due to the JVP terror, they did with gay abandon in 1994. So there were posters, cutouts, banners, processions, house to house canvassing – the works. People were largely oblivious to the restrictions in Sections 69, 74 and 75 of the elections law at the parliamentary elections of 2000 and 2001 as well. According to a discussion on this topic that this writer had with JVP Parliamentarian Vijitha Herath some years ago, it was only after the so called independent elections commission was instituted under the 17th Amendment that the Elections Commission sought to implement what had up to that time been dead provisions in the law. What parliamentarian Herath told the present writer was as follows:

“No political party can conduct an election campaign according to the provisions of the present law. You can’t canvass for votes, distribute handbills or even wear a T-shirt or cap promoting a candidate. If any political party adheres to the letter of these laws they will not be able to do an election campaign. So the laws have to be amended. In most cases, it is only after handing in nominations that the candidates will be known with certainty. We have got over some of these problems with an understanding reached between the Elections Commissioner and the political parties on the non-implementation of some of these laws. For example, people are not arrested for violating election laws when they go out canvassing after nomination day.

“At the parliamentary election in 2004 when the independent commissions were in operation, there were instances when members of our party were arrested for offenses like canvassing and wearing T-shirts with the bell symbol. The independent commission tried to implement the law to the letter. At that point, all the political parties got together and told the Elections Commissioner that if the law is implemented to the letter in this manner no political party will be able to carry out an election campaign so a general agreement was reached that canvassing will be allowed though it is an offense according to the law. Every time an election comes around the political parties start discussing the election laws but after the election ends everybody forgets about it. This issue comes into focus again only when the next election comes around.

“Posters and cut outs were not included when that agreement was reached with the Elections Commissioner to ignore some sections of the elections law. The agreement applied only to matters like canvassing, distributing handbills and the like. The law on posters remains as it is in the elections law. In actual fact even this should change and people should be allowed to put up posters. All political parties and the Elections Commissioner himself agrees that the putting up of posters should be allowed. But the reason why posters and cut outs were not included in that understanding was because of the conflicts that may arise when so many parties and candidates compete for space to put up posters. There was the possibility of violence with one party accusing the other of having ‘covered’ their posters and so on. So after much discussion, it was decided to allow canvassing, the distribution of handbills the display of symbols and the like, but to leave the law banning posters as it is.”

What is often meant by ‘violation of election laws’ is not outright violence, intimidation, bribery and the like but the displaying of posters, cut outs, holding processions and the like. TV channels often show elections authorities and the police cutting down banners and removing posters put up by candidates saying they violate elections laws. Many people would have silently wondered how putting up an election poster and cut outs violate election laws when there is an election on. When they are unable to figure out why, they may be telling themselves that if there is a prohibition on such things in the election laws, then there must be a good reason for it and basically forgetting about this incongruity until the next election comes around.

Another look at our 1946 elections law
According to Article 126 of the Representation of the People Act of 1951, in India, election campaign processions, the distribution and broadcasting of propaganda material etc. are prohibited only in the 48 hours preceding the closing of the poll. This means in effect that such activities have to stop only the day before the day of the poll. (Note that in Sri Lanka as well as India election meetings have to cease 48 hours before polling begins. The difference is that in India, political processions, the distribution of propaganda material and all that also can continue up to that point.) As for canvassing for votes, Article 130 of the Representation of the People Act seems to suggest that in Indian elections, canvassing for votes is possible until the last moment even on polling day provided that such activities do not take place within 100 meters of the polling booth. In Sri Lanka however, according to Article 68 of the Parliamentary Elections Act of 1981 canvassing for votes on polling day is absolutely prohibited regardless of how far away from the polling booth it takes place.

In India, advertisements in the electronic and print media to promote candidates are prohibited in the final 48 hours before the poll along with everything else but in Sri Lanka, since there is no express ban in the elections law on advertising in the electronic and print media, we see ads appearing promoting candidates right up to the day of the election. In Sri Lanka, a candidate at an election can be charged under criminal law and even given a jail sentence for campaigning at an election in ways that in India are perfectly legal, above board and acceptable. If we go by the letter of the election laws in this country, virtually every politician who has contested an election is an offender who should be in jail for violating election laws! In India election candidates have been given the fullest freedom to carry out election propaganda work except during the last 48 hours before the poll is scheduled to end. Having given their candidates this freedom, the violation of the reasonable restrictions imposed during the last 48 hours carries (in comparison to SL law) a comparatively heavy penalty of up to two years in jail and a fine.

Sri Lanka has been having parliamentary elections long before the Parliamentary Elections Act of 1981 was introduced. Our first parliamentary election of 1947 and all parliamentary elections up to the election of 1977 had been held under the Ceylon (Parliamentary Elections) Order in Council, 1946 which did not have the above mentioned restrictions that we see in the 1981 Act. There were no restrictions on processions to promote candidates, or on the distribution or display of handbills, placards, posters, drawings, notices, photographs, symbols, signs, flags or banners of a candidate, nor were candidates and the members of their immediate families prohibited from going house to house canvassing or distributing handbills and election propaganda material from house to house. The only restrictions that we see in Ceylon (Parliamentary Elections) Order in Council, 1946 in relation to such matters is that activities like canvassing for votes, persuading any elector not to vote for any particular candidate, persuading any elector not to vote at the election or distributing or exhibiting any handbill, placard, poster or any symbol allotted to a candidate was prohibited within a distance of fifty yards of the entrance of that polling station. The penalty for violating this prohibition was a fine not exceeding one hundred rupees or to imprisonment of either description for a term not exceeding one month or to both such fine and imprisonment.

Furthermore, the use of any megaphone or loudspeaker or other apparatus for amplifying or reproducing the human voice, within or at the entrance of a polling station or in any public or private place in the neighbourhood thereof on the date on which a poll is taken at any polling station or shouting or otherwise acting in a disorderly manner within or at the entrance of a polling station or in any public or private place in the neighbourhood thereof, so as to cause annoyance to any person visiting the polling station for the poll or so as to interfere with the work of the officers and other persons on duty at the polling station was also a punishable offense. This offense also carried a penalty of  a fine not exceeding one hundred rupees or to imprisonment of either description for a term not exceeding one month or to both such fine and imprisonment.

Furthermore, under the 1946 elections law, every person who, not being a candidate or an election agent, prints, publishes, distributes or posts up, or causes to be printed, published, distributed or posted up, any advertisement, handbill, placard or poster which refers to any election and which does not bear upon its face the names and addresses of its printer and publisher, shall be guilty of an offense and shall on conviction by a District Court be liable to a fine not exceeding five hundred rupees. Provided, however, that a person shall not be guilty of an offense under the preceding provisions of this section, in relation to any advertisement, handbill, placard or poster, if he satisfies the District Court that the omission of the aforesaid names and addresses, or any such name or address, as the case may be, arose from inadvertence or from some other reasonable cause of a like nature and did not arise from any want of good faith.

Furthermore, a candidate, or an election agent, who prints, publishes, distributes or posts up or causes to be printed, published, distributed or posted up any advertisement, handbill, placard or poster which refers to any election and which does not bear upon its face the names and addresses of its printer and publisher shall be guilty of an illegal practice. Every person who commits an illegal practice shall on conviction by a District Court be liable to a fine not exceeding three hundred rupees and shall by conviction become incapable for a period of three years from the date of his conviction of being registered as an elector or of voting at any election under this Order or of being elected or appointed as a Senator or Member of Parliament, and if at that date he has been elected or appointed as a Senator or Member of Parliament, his election or appointment shall be vacated from the date of such conviction.

Thus we see that the provisions in the Ceylon (Parliamentary Elections) Order in Council, 1946 was much more in accordance with commonsense and practical considerations than the Parliamentary Elections Act of 1981. It can be seen that the former is in alignment with the more rational election laws that we see in India as well. There are lessons for the present that we can derive from the Ceylon (Parliamentary Elections) Order in Council, 1946.